Peel Law Assn. v Pieters [2012] ONSC No 684

Is speculation enough to establish a nexus between differential treatment and racism?

Facts

The Peel Law Association runs the A. Grenville and William Davis courthouse in Brampton, Ontario. The Association has a policy restricting access to certain areas of the courthouse, including its lounge and library. In these areas, only lawyers are permitted access; members of the public and paralegals are a not allowed in. To enforce this policy, copies of which are posted on the doors to the lounge/library, a certain number of librarians are authorized to ask unknown persons for identification. These librarians regularly screen persons in the library and lounge who are unknown to them.

On the date in question, the personal respondent (an employee authorized to enforce the access policy) was walking through the lounge on her way to the robing room to investigate a report of an unknown person. She deviated from this task when she saw three black men sitting in the lounge. She approached the men and asked them, one at a time, to state and then prove their professional status. A heated argument ensued, in which Mr. Pieters, who had been in the middle of a phone call, announced to his caller that he was being subjected to an act of racial profiling. When asked by the complainants why she was asking them for ID, she stated that paralegals were not allowed in the lounge; when asked why she was targeting only black people, she falsely responded that she knew that everyone else in the lounge were lawyers. Four persons who were unknown to the personal respondent and who had witnessed the interaction with the complainants all produced ID in anticipation that they, too, might be asked for it. The respondent was so shaken by the angry confrontation with the respondents that she did not confirm that their ID was credible. The Tribunal found that her approach was “aggressive”, “blunt”, “demanding”, “abrupt”, “offensive” and “demanding” and that the overall experience of the respondents was “demeaning”.

Following this conversation, the librarian accompanied Mr. Pieters to the courtroom in order to retrieve one of his business cards. Later that day, following a meeting in which the personal respondent made an incident report to the PLA Board of Directors, additional signage was posted in the areas around the lounge and library alerting persons to the admissibility policy.

First decision

In an earlier decision,Pieters v. Peel Law Association [2010] HRTO 2411,the Tribunal used the following standards, taken from the Phipps v. Toronto Police Services Board [2009] to make a determination of racial discrimination:

The prohibited ground or grounds of discrimination need not be the sole or major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;

The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element;

There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

Racial stereotyping will usually be the result of the subtle unconscious beliefs, biases and prejudices.

It also referred to the following words from the Nassiah v. Peel [2007] case:

I find the racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also supports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black.

It used the following three-part schema to make a finding of prima facie discrimination

1. Differential treatment

The Tribunal found that the applicants had made a prima facie case of discrimination: the personal respondent singled out and aggressively questioned three black men and no other unknown persons.

2. Lack of a persuasive non-discriminatory reason

The PLA's arguments in defense of the personal respondent were either incorrect (the respondent did speak to Mr. Pieters), or unsupported (the librarian never testified that she linked the respondents with the persons who had re-arranged furniture) or untenable (if the librarian was on the way to a different room to investigate another unknown persons report then why did she stop to speak to the three respondents)? Furthermore, the explanation provided by the personal respondent (she knew everyone else in the room to be lawyers) was shown to be false (there were at least three other unknown persons in the lounge). The Tribunal stated that it was "the lack of a persuasive non-discriminatory reason for the questioning of the applicants provided either at the time of the incident or at the hearing leads me to conclude that the personal respondent's decision to question the applicants was indeed tainted by considerations of their race and colour". (90).

3. Manner in which the questioning took place

The Tribunal found that "the way in which the personal applicant approached the applicants and the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge, and [it] was prepared to draw the inference that the way in which she interacted with the applicants was tainted by consideration of their race and colour". (91)

Pieters Law Assn appealed to the Ontario Supreme Court, bringing forth the following issues:

Issues

Did the Tribunal err by unreasonably determining that a prima facie case of discrimination had been established and/or by impermissibly reversing the onus?

Did the Tribunal unreasonably reject rational and credible explanation of non-discriminating reason for the conduct complained of?

Yes

Yes

Decisions

Legal Principles

At Paragraph 14, the court stated that “In order to prove a prima facie case of discrimination, there must be evidence of

a) A distinction or differential treatment;

b) Arbitrariness based on a prohibited ground;

c) A disadvantage; and

d) A causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.”

At Paragraph 15, the Court cited the following passage from the McGill University Health Centre (2007) where the Supreme Court distinguished between discrimination and distinction:

“What flows from this is that there is a difference between discrimination and distinction. Not every distinction is discriminatory. It is not enough to impugn and employer’s conduct on the basis that what was done had a negative impact on an individual in a projected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantage criterion or conduct, either on its face or in its impact, which triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

Reasons

The Court determined that: “In summary, the Tribunal erred in determining there was a prima facie case of discrimination. No evidence was adduced that was capable of supporting the finding of a distinction or differential treatment or that any such treatment was motivated by race or colour. Moreover, by failing to require the complainants to satisfy the nexus requirement, the Tribunal improperly reversed the burden of proof placing an impossible onus on the applicants to disprove discrimination. “ (47-48)

No differential treatment

The Court determined that the Tribunal’s conclusions were inconsistent with its finding of facts:

It found that the Tribunal made its finding of prima facie discrimination based on the following conclusions:

a) The complainants were the only black men in the lounge

b) The complainants were the only persons that the librarian questioned

c) The librarian interrupted her planned trip to the robing room to question the complainants.

d) The librarian confronted the complainants in “an aggressive and demanding manner”.

However, it also found that the Tribunal’s findings of fact were inconsistent with these conclusions[1]

a) The first conclusion was contracted because there was clear evidence explaining why the librarian approached the complainants; they were the first persons she saw when entering the room. The Court said, at paragraph 24, that “The Vice-Chair appears to have ignored the fact of the complainants’ location when holding that “the applicants and Mr. Waldron were the only Black men and the only persons the personal respondent chose to question” as a factor in establishing a prima facie case of discrimination by Ms. Firth”

b) The second was contradicted by the Vice-Chair’s determination that the librarian’s explanation for speaking only to the complainants was credible. The Court pointed out, at para 26, that “The fact that her overall credibility was undermined by her explanation that she knew everyone else in the room to be lawyers which was found not to be credible, does not change the finding that her focus was on Mr. Pieters at the time, and that this focus was a credible explanation for the fact that she did not check the identification of other persons in the lounge.

c) The third conclusion was contradicted by the Vice Chair’s findings that the librarian’s actions were routine; they were governed by policy and in accordance with her daily practice. At paragraph 27, the Court said that “In finding evidence of discrimination, the Vice-Chair also relied on the fact that Ms. Firth had changed her planned trip to the robing room in order to check identification in the lounge. However, the Tribunal accepted the evidence that Ms. Firth regularly checked both areas, as well as the library, and that her conduct was not irregular.”

d) The fourth conclusion was contradicted by the Vice-Chair’s finding that the librarian often confronted patrons (racialized and non-racialized) in an aggressive and demanding manner. At paragraph 33, the Court said that in the circumstances, “the fact that the incident was contentious does not establish differential treatment, particularly where there were other situations when non-racialized persons had been offended when asked for identification by Ms. Firth”

Given the contradiction between findings of fact and conclusions of discrimination, the court determined that the Tribunal had erred in reversing the onus of proof to the respondents. In paragraphs 34-38, the Court explains its determination:

“In the circumstances, I agree with the applicants that the Tribunal had no evidentiary basis upon which to conclude that Ms. Firth subjected the complainants to differential treatment. Moreover, the Vice-Chair’s conclusion in para. 84. that “these facts are sufficient to require the respondent to provide an explanation for their actions to support their position that the decision to question the applicants was not tainted by race or colour”, in effect reverse the onus of proof. The undisputed evidence is that Ms. Firth’s duties included asking for identification to confirm the admissibility of persons in the lounge and library. Her position at the hearing was that she acted on this occasion in the context of those duties. By improperly reversing the burden of proof, the Tribunal place her in the difficult position of trying to prove a negative, namely , that her conduct in the performance of her routine duties was not motivated by race and colour. With respect, the Tribunal erred in doing so.

Failure to create a nexus between distinction and race and improper reliance on racial profiling cases

e) Finally, the court determined that the Tribunal had no evidence upon which to establish a nexus between the treatment of the complainants and their race[2]. Instead, Vice-Chair improperly used an analogy to racial profiling to infer such a nexus[3]. Moreover, even within racial profiling cases, it is insufficient to infer that every racialized person who has an unpleasant interaction with a police officer is a victim of racial profiling; it is always necessary to establish a nexus [4]. The Court determined that “the Vice-Chair appears to have assumed the nexus with the respondents’ race and colour from his finding of differential treatment” (45) “This reversed the onus by, in effect, removing the requirement for the complainants to establish more than a mere distinction in treatment. There was no evidence to demonstrate the required nexus in this case. Speculation or inferential statements are simply not enough. “ (45-46)

The Court found that the Tribunal had unreasonably rejected rational and credible explanation of non-discriminating reason for the conduct complained of. This is because it drew its (erroneous) conclusions of racial discrimination based on its assessment of the librarians’ credibility while failing to resolve two credibility issues involving the contradictory information presented about: 1) the conduct of Mr. Pieters during the encounter with the librarian and 2) the knowledge of the lawyers-only policy by the complainants prior to the encounter with the librarian. This is what the Court determined in paragraphs 53-54:

“It is true that while the Tribunal has to make finding of fact and credibility, these cannot be reduced to an exact science. Nevertheless, given how the Vice-Chair rested his conclusion regarding Ms. Firth’s lack of credibility, particularly when compared with Mr. Peiters’ testimony, it was necessary for him to resolve these issues. As noted previously, the Tribunal must be accorded the highest degree of deference. However, the particular circumstances of this case, the central issues of credibility had to be examined in light of all the testimony. In our respectful view, the adjudicator erred in not doing so

Order

The application was allowed, the Tribunal’s decision was quashed with no chance of appeal. The respondents were to pay $20, 000 to the applicants.

[1] Given the contradictions between the tribunal’s conclusions of discrimination and its findings of fact, the court concluded at this point that “in the circumstances, there was insufficient evidence for the Vice-Chair to determine that Ms. Firth stopping on the way to the robing room and questioning the respondents constituted differential treatment.” (30).

[2] “There was no evidence adduced that was sufficient to establish the nexus with the complaints’ race or colour. In that regard, the Vice-Chair use police racial profiling cases to infer the nexus. In my view, there is a significant difference between what occurred here and a police investigation”. (41)

[3] While Police have authority, power and control over citizens, Ms. Firth is a librarian, employer to provide library services to lawyers, and she had no legal authority or power to detain, pursue or investigate the complainants. I agree with the applicants that reliance by the Vice-Chair on law enforcement cases was misconceived. (43)

[4] While racial profiling may be established by circumstantial evidence r by inference drawn from the evidence, it must still be established. A complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction to establish a prima facie case of discrimination. (44)